Thursday, February 28, 2013

Three quick points about yesterday’s Supreme Court decision

Yesterday
the Supreme Court issued its decision in NewZealand Māori Council v Attorney-Generaland dismissed the Māori Council’s
appeal in relation to the proposed partial privatisation of Mighty River Power.
As has been widely reported, the result of the Supreme Court decision is that
the Government can now proceed with the sale of shares in Mighty River
Power. There will no doubt be plenty of
analysis and comment on this decision, but I just wanted to touch on three
interesting points that struck me when I was reading the Court’s judgment.

Treaty
principles reinforced

Even
though the outcome of the Supreme Court decision is the same as the outcome of
the High Court decision, the Supreme Court overrules one key aspect of Justice
Ronald Young’s reasoning. Justice Young
found that the proposed sale of shares in Mighty River Power was not subject to
an action in judicial review that is based on consistency with the principles
of the Treaty of Waitangi. However, the
Supreme Court disagreed, drawing for support on the approach of the Court of
Appeal in the 1987 SOE case:

The Court of Appeal’s recognition that s 9 stated a fundamental
principle guiding the interpretation of legislation which addressed issues
involving the relationship of Maori with the Crown, must accordingly form the
basis of the approach of New Zealand courts to any subsequent legislation
requiring that the Crown act consistently with Treaty principles. The judgment
gives no support to narrow approaches to the meaning of such clauses. In
re-enacting the identical provision to act consistently with Treaty principles,
in the mixed ownership companies legislation, Parliament’s purpose is that the
Treaty provisions in Part 5A carry the broad meaning, and be given the broad
application reflected in the judgments of the Court of Appeal concerning s 9 in
the SOE case. The Parliamentary purpose is clear: s 45Q must receive the same
interpretation as s 9 of the State-Owned Enterprises Act has received,
particularly from the Court of Appeal in the SOE case, and also from the Privy
Council in New Zealand Maori Council v
Attorney-General (Broadcasting Assets case). Section 45Q brings with it the
heritage of s 9 and this Court, reflecting what is the purpose of Parliament,
must invest it with equivalent significance. It is on that basis that we
address the arguments of counsel concerning the legislation.

Consequently,
the Supreme Court determined that decisions in relation to the sale of shares
in Mixed Ownership Model companies can be challenged on the basis of
inconsistency with the principles of the Treaty of Waitangi. This is, I think, an important re-strengthening
of Treaty principles.

Redress
and material impairment

Nevertheless,
the Court went on to conclude that, because there was no ‘material impairment’
to the Crown’s ability to recognise Māori rights or provide redress, the sale
of shares would not be inconsistent with Treaty principles. The Court sets out its approach to this issue
as follows:

As is apparent, we are prepared to accept that privatisation may limit
the scope to provide some forms of redress which are currently at least
theoretically possible. But in assessing whether this amounts to “material
impairment”, regard must be had to (a) the assurances given by the Crown, (b)
the extent to which such options are substantially in prospect, (c) the
capacity of the Crown to provide equivalent and meaningful redress, and (d) the
proven willingness and ability of the Crown to provide such redress.

I
understand the Court’s view that most of the options for rights recognition and
redress will still be at least theoretically possible after the sale of shares
in Mighty River Power. However, given
that the sale of shares will rule out the possibility of at least some forms of
redress that are currently possible (though perhaps unlikely), I wonder whether
the agreement of Māori should be sought before those options are removed. That approach would seem to me to be
consistent with the way in which the protection mechanism was agreed between
Māori and the Crown following the SOE
case. If, for example, the ‘shares-plus’
scheme was seen by Māori to be the only way of effectively recognising their
interests in water bodies, is it consistent with Treaty principles for the
Crown to give up its ability to provide that redress without at least entering
into some discussion about the issue with Māori?

Consultation

Which
leads to the issue of consultation. The
Supreme Court accepted that consultation with Māori was necessary following the
Waitangi Tribunal’s Freshwater report,
but noted that consultation occurred and was adequate:

The fact that the Crown ultimately rejected the Waitangi Tribunal
suggestion as inappropriate is not a basis from which it can be inferred that
the consultation was empty or pre-determined. Indeed, this complaint is
difficult to separate out from the substantive issue of Treaty compliance in
the privatisation. If the Crown was justified in considering that the
privatisation did not set up an impediment to recognition of Maori interests in
water, it is difficult to infer that the consultation was inadequate simply
from the fact that the idea of “shares plus” was rejected and there was no
change in the Crown’s proposal as a result. For these reasons, we consider
there is nothing in the consultation point that is not resolved with the substantive
issue of whether the sale of shares was consistent with the principles of the
Treaty.

As I have noted previously (see here and here), I have had real concerns about the way in
which consultation has been undertaken in relation to the Government’s partial privatisation
programme. I accept that the technical
requirement of consultation may have been met, and therefore understand the
Supreme Court’s decision on this point.
However, what this does suggest to me is that bare requirements of
consultation are not likely to be of much help to Māori when it comes to issues
such as this.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review